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DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE FROM LEVEL TWO TO LEVEL ONE IN THIS STATUTORY RAPE CASE; ALTHOUGH NOT PRESERVED BY A REQUEST FOR A DOWNWARD DEPARTURE, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing County Court, determined defendant was entitled to a downward departure in this statutory-rape SORA risk level proceeding. The issue was not preserved because defendant did not request a downward departure but the appeal was considered in the interest of justice:

“In cases of statutory rape, the Board has long recognized that strict application of the Guidelines may in some instances result in overassessment of the offender’s risk to public safety” … . The Guidelines provide that a downward departure may be appropriate where “(i) the victim’s lack of consent is due only to inability to consent by virtue of age and (ii) scoring 25 points [for risk factor 2, sexual contact with the victim,] results in an over-assessment of the offender’s risk to public safety” … .

Since the defendant did not request a downward departure from his presumptive risk level in the County Court, his contentions on appeal regarding a downward departure are unpreserved for appellate review … . However, under the circumstances of this case, we address those contentions in the interest of justice … .

Considering all of the circumstances presented here, including that the subject offense is the only sex-related crime in the defendant’s history, and that the defendant accepted responsibility for his crime, the assessment of 25 points under risk factor 2 resulted in an overassessment of the defendant’s risk to public safety … . Accordingly, a downward departure is warranted, and the defendant should be designated a level one sex offender. People v Maldonado-Escobar, 2021 NY Slip Op 04502, Second Dept 7-2-21

 

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MOTHER’S ATTORNEY SHOULD NOT HAVE BEEN ALLOWED TO WITHDRAW WITHOUT NOTICE TO MOTHER WHO DID NOT ATTEND THE TERMINATION-OF-PARENTAL-RIGHTS HEARING; THE DEFAULT ORDER TERMINATING MOTHER’S PARENTAL RIGHTS WAS THEREFORE IMPROPER AND APPEAL IS NOT PRECLUDED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the default order terminating mother’s parental rights was improper because mother’s attorney was allowed to withdraw without notice to mother. Because the default order was improper, mother’s appeal is not precluded (default orders are not appealable):

In this proceeding pursuant to Social Services Law § 384-b,respondent mother contends that Family Court erred in allowing the mother’s attorney to withdraw as counsel and in proceeding with the hearing in the mother’s absence. We agree. ” ‘An attorney may withdraw as counsel of record only upon a showing of good and sufficient cause and upon reasonable notice to the client . . . [, and a] purported withdrawal without proof that reasonable notice was given is ineffective’ ” … . Because there is no indication in the record that the mother’s attorney informed her that he was seeking to withdraw as counsel, the court should not have relieved him as counsel … . Although, generally, no appeal lies from an order entered on default (see CPLR 5511 …), here, the absence of evidence that the mother was put on notice of her attorney’s motion to withdraw renders the finding of default improper, and thus the mother’s appeal is not precluded … . We therefore reverse the order and remit the matter to Family Court for the assignment of new counsel and a new hearing … . Matter of Calvin L.W. (Dominique H.), 2021 NY Slip Op 04470, Fourth Dept 7-15-21

 

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DISCOVERY REQUESTS AIMED AT AN ISSUE WHICH WAS ADMITTED BY DEFENDANTS SHOULD NOT HAVE BEEN GRANTED; BECAUSE THE ALTERNATIVE ARGUMENT FOR THE DISCOVERY REQUESTS WAS NOT SUPPORTED BY A MEMO IN THE RECORD DEMONSTRATING THE ISSUE WAS PRESERVED, THE ARGUMENT WAS REJECTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants’ discovery requests in this traffic accident case should not have been granted. The requests for defendants’ cell phone records and receipts for food and beverages on the day of the accident were aimed at demonstrating the identity of the driver of defendants’ vehicle. But the identity of the driver had been admitted by the defendants. Plaintiff’s alternative argument was rejected because there was no memorandum of law in the record to demonstrate the issue had been raised below:

Given the prior admission establishing that [defendant] Vladyslav was the operator of the pickup truck, plaintiff “failed to meet the threshold for disclosure by showing that [his] request for [defendants’] cell phone [records and records for food and beverage purchases] was reasonably calculated to yield information material and necessary to [his action]” … . …

Plaintiff … contends, as an alternative ground for affirmance, that there is a different reason supporting disclosure that was not included in his discovery requests or motion papers in the record on appeal, i.e., the requested records are potentially relevant to identifying witnesses who could testify about Vladyslav’s physical condition on the night of the accident and to determining whether Vladyslav was intoxicated or impaired. On the record before us, which does not include any memoranda of law despite our repeated and longstanding advisements that such memoranda may properly be included in the record on appeal for the limited purpose of determining preservation … , we conclude that plaintiff’s contention is not properly before us inasmuch as it is raised for the first time on appeal … . Brennan v Demydyuk, 2021 NY Slip Op 04425, Fourth Dept 7-16-21

 

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ALTHOUGH THE ARGUMENT THAT THE INDICTMENT WAS DUPLICITOUS WAS PRESERVED FOR APPEAL, THE ISSUE WAS NOT RULED ON BY COUNTY COURT AND THEREFORE CAN NOT BE CONSIDERED ON APPEAL; MATTER REMITTED FOR A RULING (FOURTH DEPT).

The Fourth Department noted that it can not consider an issue which was preserved for appeal but was not ruled upon by County Court. The matter was remitted:

Although defendant did preserve his contention concerning facial duplicity by seeking dismissal of the indictment on that ground in the pretrial omnibus motion … , we are unable to address that contention because County Court failed to rule on that part of defendant’s omnibus motion (see CPL 470.15 [1] …).

The Court of Appeals “has construed CPL 470.15 (1) as a legislative restriction on the Appellate Division’s power to review issues either decided in an appellant’s favor, or not ruled upon, by the trial court” … , “and thus the court’s failure to rule on the motion cannot be deemed a denial thereof” … . We therefore hold the case, reserve decision and remit the matter to County Court for a ruling on that part of defendant’s omnibus motion. People v Baek, 2021 NY Slip Op 04424, Fourth Dept 7-16-21

 

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THE TRIAL JUDGE SHOULD HAVE PROCEEDED WITH BATSON INQUIRIES FOR THREE BLACK PROSPECTIVE JURORS; BASED ON THE JUDGE’S REMARKS THE MATTER WAS REMITTED FOR A HEARING AND REPORT BEFORE A DIFFERENT JUDGE (SECOND DEPT).

The Second Department determined Supreme Court should have conducted a Batson inquiry with respect to the prosecutor’s exercise of peremptory challenges to three black prospective jurors. The appeal was held in abeyance and the matter was sent back for a hearing and report before a different judge. The trial judge’s remarks about the number of black jurors being representative of the community (“this is not the Bronx”) and the fact that three black jurors served were deemed irrelevant:

Contrary to the trial court’s finding that the number of black prospective jurors to actually serve on the jury (three in total) was fairly representative of the community, as represented by the court’s remark that “[t]his is not the Bronx,” such consideration is “irrelevant” to the issue of whether the People’s exercise of peremptory challenges was discriminatory … . Similarly, to the extent the People emphasize that three black prospective jurors served on the jury, that fact does not obviate the defendant’s prima facie showing of discrimination … .

Accordingly, we find that the defendant satisfied the first step of the Batson inquiry with respect to the prosecution’s exercise of peremptory challenges to each of the three black prospective jurors at issue. Thus, the trial court should have proceeded with the second step and, if applicable, the third step with respect to each of the Batson challenges … . People v Brissett, 2021 NY Slip Op 04366, Second Dept 7-15-21

 

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A SUPPRESSION MOTION CANNOT BE DENIED ON A GROUND NOT RAISED BY THE PEOPLE (FIRST DEPT).

The First Department, holding the appeal in abeyance, noted that a suppression motion may not be denied on a ground not raised by the People:

The motion to suppress should not have been denied on a ground not raised by the People. It is unclear to what extent the suppression court considered and credited the People’s argument regarding probable cause or whether the search was outside of the Fourth Amendment’s purview under the circumstances. Accordingly, we hold the appeal in abeyance and remand for determination, based on the hearing minutes, of the issues raised at the hearing, but not decided … . People v Hatchett, 2021 NY Slip Op 04282, First Dept 7-8-21

 

UNDER THE NEW APPELLATE PRACTICE RULES FOR CROSS-APPEALS, DEFENDANTS ABANDONED THIER APPEAL BECAUSE THEY DID NOT FILE THEIR BRIEF WITHIN SIX MONTHS OF FILING THE NOTICE OF APPEAL; THE COURT OPTED TO WAIVE DEFENDANTS’ NONCOMPLIANCE AND DEEMED THE CROSS APPEAL PROPERLY BEFORE THE COURT (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, discussed the applicability of the new practice rules for appeals to cross-appeals:

… [T]he new practice rules pertaining to cross appeals specify that “[t]he party that first perfects the appeal shall be denominated the appellant-respondent” (Rules of App Div, All Depts [22 NYCRR] § 1250.9 [f] [1] [iii]). Until such time as either party has perfected, the identity of a party as either an appellant-respondent or a respondent-appellant remains to be determined. Having filed a notice of cross appeal on June 2, 2020, defendants had until December 2, 2020 to perfect their appeal or otherwise seek an extension. Defendants failed to do either. For this reason, plaintiff maintains that the cross appeal was effectively abandoned and technically plaintiff is correct. The rules, read as a whole, require each party to preserve its position until such time as one of the parties actually perfects its appeal. That said, the rules require the parties to “consult and make best efforts to stipulate to a briefing schedule” (Rules of App Div, All Depts [22 NYCRR] § 1250.9 [f] [1] [i]), and there is no indication in this record or the briefs that such consultation occurred here. In any event, since this is our first decision addressing implementation of the new practice rules relating to cross appeals, we opt to waive defendants’ noncompliance and deem the cross appeal properly before us (see Rules of App Div, All Depts [22 NYCRR] § 1250.1 [g]). New York Mun. Power Agency v Town of Massena, 2021 NY Slip Op 04268, Third Dept 7-8-21

 

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THE VAGUE IDENTIFICATION EVIDENCE RENDERED THE CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the identification evidence was too weak to support a conviction, i.e., the conviction was against the weight of the evidence. Witnesses saw a man toss a bag of drugs over a fence and run away:

Both women saw the man holding what appeared to be a white shopping bag with red circles on it, which he threw over a chain-link fence nearby. The man continued running through the parking lot toward Grand Street.

One of the women described the man she saw as a black man with short, dark hair, wearing a dark baseball cap, a T-shirt, jeans, and sneakers. The man was “a little taller, somewhat taller” than five feet, two inches, but she was not sure. She estimated his weight to be 175 to 185 pounds, but she was not sure. She did not remember if he wore glasses. She could not describe the color of his clothing or give any description of the sneakers he wore. The other woman described the man as a young black male, approximately five feet, seven inches tall, but she could not say for sure, and “guesstimat[ed]” that he may have weighed 170 pounds. She testified that he wore a baseball cap and might have been wearing dark pants and dark sneakers. Neither woman was able to identify the defendant as the man they saw. …

… [N]either of the police witnesses observed the defendant carrying a bag, neither of the bystander witnesses was able to identify the defendant as the man carrying the bag, and no forensic evidence linked the defendant to the bag. … [T]he rational inferences that can be drawn from the trial evidence do not support the convictions beyond a reasonable doubt. Although the vague description provided by the bystander witnesses was not inconsistent with the defendant’s general appearance, we find that such evidence, coupled with nothing more than the defendant’s proximity to the crime scene, is insufficient to establish, beyond a reasonable doubt, the defendant’s identity as the perpetrator … . People v Hawkins, 2021 NY Slip Op 04238, Second Dept 7-7-21

 

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THE EVIDENCE OF “PHYSICAL INJURY” WAS LEGALLY INSUFFICIENT, ASSAULT 2ND CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s Assault 2nd conviction, determined the evidence of “physical injury” was legally insufficient:

… [T]he evidence, when viewed in the light most favorable to the prosecution … , was legally insufficient to establish, beyond a reasonable doubt, that the complainant sustained a physical injury within the meaning of Penal Law § 10.00(9). Physical injury is defined as “impairment of physical condition or substantial pain” … . At the time of the incident, the complainant did not seek medical attention and proceeded on his way. He testified at trial that he continued to have pain in his back and neck for approximately three weeks, had pain when he lifted “something” when working in construction, without specifying what “something” was, and was unable to use a pillow to sleep. However, he never sought medical treatment after the incident, claiming that he did not need it, and he used only a topical pain relief cream to relieve pain. Under these circumstances, there was insufficient evidence from which a jury could rationally infer that the complainant suffered substantial pain or impairment of his physical condition … . People v Bowen, 2021 NY Slip Op 04236, Second Dept 7-7-21

 

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ALTHOUGH AN ABUTTING PROPERTY OWNER CAN BE LIABLE FOR A DANGEROUS CONDITION IN THE GRASSY STRIP BETWEEN THE SIDEWALK AND THE CURB, HERE THE PROPERTY OWNER DEMONSTRATED HE DID NOT CREATE THE CONDITION; IN ADDITION, THE VILLAGE CODE DID NOT IMPOSE TORT LIABILITY ON PROPERTY OWNERS, AN ISSUE PROPERLY CONSIDERED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property-owner’s motion for summary judgment in this sidewalk slip and fall case should have been granted. Although, pursuant to the Vehicle and Traffic Law, defendant can be responsible for a dangerous condition in the grassy strip between the sidewalk and a curb, here defendant demonstrated he did not create the condition and the village code did not impose tort liability on abutting property owners. Although the “village code” issue was not raised below, it was a purely legal issue that can be considered on appeal:

The grass strip situated between a sidewalk and a roadway is part of the sidewalk (see Vehicle and Traffic Law § 144; Code of the Village of Westbury [hereinafter Village Code] § 215-2 … ). “‘An abutting landowner will be liable to a pedestrian injured by a defect in a public sidewalk only when the owner either created the condition or caused the defect to occur because of a special use, or when a statute or ordinance places an obligation to maintain the sidewalk on the owner and expressly makes the owner liable for injuries caused by a breach of that duty'” … .

Here, the defendant established his prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him by demonstrating that he did not create the alleged dangerous condition or cause that condition through a special use of the sidewalk … . In addition, while Village Code § 215-12 imposes a duty on owners and occupants of abutting land to keep sidewalks free of obstructions, the Village Code does not specifically impose tort liability for breach of that duty … . Although the defendant did not make an argument based on the provisions of the Village Code in support of his motion before the Supreme Court, his argument in this regard is reviewable on appeal because it is a purely legal argument that appears on the face of the record and could not have been avoided had it been raised at the proper juncture … . Lamorte v Iadevaia, 2021 NY Slip Op 04126, Second Dept 6-30-21

 

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